Wednesday, October 10, 2018

Believing Men Who Lie About Rape

by Sherry
F. Colb

Dr.
Christine Blasey Ford needed a great deal of courage to come forward and accuse
Judge Brett Kavanaugh of attempted rape. Such accusations predictably yield
resistance, with allies of the accused saying that the accuser is either lying
or mistaken (or crazy). Yet Ford brought her accusation nonetheless, saying
that she felt it was her civic duty, and Donald Trump described her testimony
as credible; at least that is part of what he initiallysaid.
He also observed that he himself has endured false sexual assault allegations,
implying that he and Kavanaugh were like peas in a pod.

Trump's
expressly drawing a parallel between his own and Kavanaugh's experience was
interesting. Trump, as we know, effectively confessed to sexually assaulting
women in an Access Hollywood video that aired only weeks before the
presidential election. The women who subsequently came forward were simply
confirming that Trump had committed the criminal acts that he had described in
the video.

Another sexual assault allegation
against him was that of his ex-wife, Ivana Trump. Ivana reportedly gave a deposition during the Trumps'
divorce proceedings in which she provided a graphic description of Trump
brutally raping her. He was apparently enraged after having undergone painful
scalp reduction surgery to cover a bald spot. He allegedly tore clumps of her
hair off her head, tore her clothes off, held her down, and
jammed his penis into her. In her account of these events, she ran
upstairs and cried for the rest of the night. When she returned to their
bedroom, he reportedly menacingly asked her "does it hurt?" Ivana has
since retracted this accusation, and one can decide whether the accusation or
the retraction is more credible.

Whether
one believes Ivana's detailed account or not, Trump does appear to engage in
false sexual assault denials (while characterizing his own confessions as mere "locker room talk"). That's hardly surprising, given all of the other distortion and outright lying in which the president engages. Here, however, I want to set aside Trump's broader tendency to lie to focus on his false denials that he has committed sexual assault. He said he was innocent of sexual assault and called his accusers liars. Why in the world would he imagine that
comparing himself to Kavanaugh would help exonerate Kavanaugh?

To see
just how peculiar Trump’s identification with Kavanaugh was if Trump’s real
goal was to make Kavanaugh seem more sympathetic, consider the converse.
Imagine that a woman named Donna falsely accused a man, Hans, of rape. Donna
tells a friend on video that she falsely accused Hans because Hans got mustard
on Donna's blouse one time and did not offer to have it cleaned. She adds that
"when you're a star, they let you do it. You can do anything. Grab 'em by
the balls. Just invent rape accusations. You can do anything, and everyone
believes what you say!" The video becomes public so that everyone knows
that Donna is a liar who falsely accused Hans of rape. Then, a couple of years
later, Donna's friend Mara happens to accuse some other man, Ingram, of rape as
well.

Would
Donna come forward and say that she sympathizes with Mara, because men have
sexually assaulted her too? That seems unlikely. After all, Donna is an
admitted false accuser. Connecting her own experiences with those of her friend
Mara would necessarily suggest to people that Mara's claim is as false as
Donna's. To help her friend, Donna would deliberately keep her distance from
Mara, precisely so that no one draws the conclusion that just as Donna falsely
accused Hans, so then did Mara falsely accuse Ingram.

Yet Trump
felt no compunction about daring to step in front of the cameras and say that he understands Kavanaugh's
situation because Trump too has been falsely accused of sexual assault.

There
seems to be no pervasive stereotype about accused sex criminals wrongfully
denying their own guilt such that Trump's lies might contaminate Kavanaugh by
association. There is, by contrast, a ubiquitous stereotype of the "woman
who cried rape." Like the boy who cried wolf, the narrative of the woman
who falsely accuses an innocent man of violating her trains people to dismiss
every complaint.

When
asked what he says to young men in America as well as to young women, Trump
replied that it is a very scary time for young men in America, where you can be guilty
of something you may not be guilty of, but that women are doing great.
The most serious danger is of a false accusation, not that women (and some men)
will be the victims of rape or attempted rape, nor that when they are, their
complaints will be improperly dismissed.

The stereotype of women who falsely cry rape has been with us
for a long time. Lord Mathew Hale, a prominent British jurist of the
seventeenth century, said the following of rape complaints: "rape
is an accusation easily to be made, hard to be proved, and harder yet to be
defended by the party accused, tho' never so innocent." Reflecting his
view, rape trials long required a cautionary instruction repeating or
paraphrasing Hale's warning and/or telling the jury to give the victim's
testimony greater scrutiny than that of other witnesses, an
instruction that was apparently routine into the late twentieth century. When
addressing rape, the focus of the law until very recently has been to guard men
against false accusations.

Literature and film have contributed to the notion that when
it comes to rape, otherwise ordinary women simply lie with impunity. Consider
three classics from earlier periods that still play an important role in our
culture.

I have long loved the book "To Kill A Mockingbird." It tells the story of
an innocent black man on trial before a racist jury and the heroic attorney who
proves his client's innocence. The story is gripping and became a
classic film as well, and there are riveting subplots
that contribute to the tension. But at the center of the action is a white
young woman's false claim that the defendant raped her.

I bring this up not to indict the story. As I said, it is an
excellent tale. And white people have invoked trumped-up charges of
black-on-white rape (or far milder sexual battery) as a pretext for both
criminal charges and lynchings. But lynchings between 1880 and 1930 more frequently rested on other grounds, such as
political activism, labor organizing, insolence, and other defiance of white
expectations of blacks.

To capture an audience that might sympathize with the wrongly
convicted, a false rape accusation might have seemed the ideal dramatic
vehicle, even though there were other options. And the choice reinforced the
notion, echoed recently by Trump, that women falsely claiming rape was
something that all good men should fear.

Another book with a brief subplot about a false rape complaint
is "Of Mice and Men." I do not recall this
subplot from when I read the book in high school, but one of my children recently
brought it to my attention, because she too was assigned to read it for high
school. The tragic character Lennie is an intellectually disabled man who is
strong, child-like, and seemingly seized with the compulsion to grab things and
hold on tight when he becomes excited or agitated. In one town where he and his
friend and informal caretaker George worked, Lennie inadvertently frightens a
woman whose dress he touches and refuses to let go. She then goes and
"tells the law she been raped," lying about what actually happened.

The book is a classic work of fiction. In citing it here, I
mean to take nothing away from that. It does, however, paint much more
uncharitable portraits of the female characters than of the male ones. Lennie
repeatedly touches animals and women because they are soft, and he then
frightens, harms, or kills them because he cannot control himself when he is
scared or upset. Yet the reader feels for Lennie and not for his victims.
Things catch up with him after he touches the wife of the character Curley and
then, trying to quiet her, inadvertently kills her. The female victim here, as
we learn earlier in the story, was promiscuous.

In this book, the "accused" man is once again
innocent. He did not rape the first woman who accuses him. And though he
did kill Curley's wife, he did not mean to kill her. He is intellectually
disabled and means well. Steinbeck portrays him as a victim of the false rape
complaint and the unintended death of a promiscuous woman, notwithstanding his
violence toward defenseless people and animals. In the end, despite all of the
carnage, we feel sad for Lennie (I remember crying when I read the book); he—and
not his actual victims—is the real victim whom we mourn.

And a film, "Gone
With The Wind," has in it an implied rape scene that is
simultaneously denied. I focus on the film rather than the novel on which it
was based, because of the film’s role in American culture. It set a great
many records for viewership, including millions of people who watched it
long after the Civil Rights movement ought to have problematized its view of
slavery as a benevolent institution. And its message about women remains with
us.

What is that message? Consider an iconic scene. Scarlett
O'Hara is yelling and carrying on, and Rhett Butler picks her up and carries
her up the stairs to their bedroom, against her will and with her struggling
along the way. Because movies tended to be less graphic and explicit in 1939,
the scene cuts to Scarlett lying in the marital bed the next morning, looking
happy and satisfied, presumably because of what has just happened.

The implication is quite obvious. Rhett stood
up to his wife's insolence and carried her to where she belonged, in his bed.
He took her to their bedroom against her will and forced her to have sex with
him. And we are meant to understand that she enjoyed the forcible sex so much
that she was glowing with fulfillment the next morning, perhaps day-dreaming
about how much fun it was to get raped by the man she loved. This rape story is
seen as so romantic that part of it appears in a trailer
for the film.

This is not a typical false complaint story, because
Scarlett's only complaint is her struggle
to get free of Rhett and to cry out as he carries her up the stairs. The movie
viewer comes to see even this form of complaint, however, as false, because she
likes being forcibly raped after all, as we see from her smiling reaction. We
are meant to think "how romantic!," and most people who saw the film likely did not
even register this scene as involving a rape at all. Like a refusal to credit a
rape victim's story after the fact, the refusal to take “no” (or even physical struggling) for an
answer—because the man supposedly knows what the woman really wants—represents
a form of denial, of the sort I discussed in my Verdict column.

I bring up the false rape complaint theme in literature and
in film because through them we transmit "knowledge" throughout the
population and over time. We learn that there is no need to listen to women who
"cry rape" because we know from fiction that they lie about this sort
of thing all of the time. The fact that it is all fiction and reflects
prejudice rather than reality does not seem to diminish its persuasiveness.

Unfortunately, we do not have a body of fiction or other
narratives to let us know that guilty men frequently falsely deny rape when
they stand accused. There are not a lot of films in which a man commits a rape
and the audience knows that he is guilty, but he denies the crime and everyone
believes him, leaving him free to rape again. We do not have many books that
highlight the effects of taking a stance of radical skepticism in response to
complaints of sexual assault but not other crimes, demanding corroboration, and
effectively denying that rape is a genuine problem. The boy who cried "I'm
innocent!" is not part of our cultural narrative.

That Trump was able to say without intended irony that men
face great danger now, meaning the danger of false accusations, is very
telling. It reinforces the regular invocations of the presumption of innocence
in connection with Brett Kavanaugh (as though he was being considered for a
prison sentence rather than a seat on the highest court in the land), and the
calls for corroboration and the characterizations of an eye-witness-victim's
sworn testimony as unsubstantiated accusations. To understand the problem here,
consider what happens when we presume innocence in the face of contrary
evidence.

In a criminal trial, when we presume innocence, it means that
we require jurors to render a "not guilty" verdict unless they hear
enough evidence to conclude beyond a reasonable doubt that the defendant is
guilty. The reason for this demanding standard of proof is that we believe (or
at least we assume) that it is better that ten guilty people go free than that it
is for one innocent person go to prison. What does a heavy burden of proof have
to do with how many guilty people go free and how many innocents go to prison?

Whenever we use any instrument to make a determination, we
have to decide whether our priority is to minimize false positives or whether
it is to minimize false negatives. Think of a test for some disease. If the
disease is potentially deadly and treating it is easy, cheap, and without side
effects, we might seek to minimize false negatives down to zero, if possible.
That could mean many false positives, but that is okay, because the downside of
a false positive is a low-priced and harmless drug. If, on the other hand, the
disease is painful
but not life-threatening and the treatment is expensive and somewhat unpleasant[MD1], we would
probably prefer to minimize false positives and treat only those who are
extremely likely to have the illness, even though that would yield false
negatives.

Which one is rape? Well, if someone goes on trial for the
crime, then the downside of a false positive is substantial, because it would
mean that an innocent person goes to prison. What if a guilty rapist falsely
denies committing the crime and we believe him?Far too many of our fellow citizens and their elected representatives appear to think that
believing false denials has no cost. If a woman comes forward and tells us her
story of being sexually assaulted, and her alleged assailant lies to us and
says that he is not guilty, many Americans--including most of those in power right now—seem to take the position that
there is no cost to believing the guilty assailant who lyingly denies his guilt.
Many Americans take that position even when believing the accuser would merely have denied the accused a seat on the U.S.
Supreme Court, not his money and not his freedom from incarceration.

Well, what are the costs? One cost is to the specific victim
whose words we dismiss as false. To her, coming forward was scary but she did
it anyway, because she thought it would be empowering to tell the authorities
about her attacker. When the authorities say, "sorry, we don't believe
you," they send her back into the powerlessness, isolation, and rage
turned inward that haunt many survivors of sexual assault. She also must
continue to feel scared of her assailant, because, having gotten away with his
crime, he develops a sense of impunity[MD2].

Another cost of believing false rape denials is that when the
system fails to punish (or worse, rewards)people who commit
sexual assault, there is nothing to deter anyone inclined to commit this crime
from doing so. An important function of the criminal justice system is to teach
the people who are watching that those who carry out violence against others
will have to pay for their crimes. Someone considering committing rape might think twice if he
learns of a perpetrator receiving his just desserts. And likewise, if the
perpetrator gets away with his violence, then those who obey the law only
because they fear punishment will understand that they need not worry about
consequences.

Treating false negatives as harmless makes no sense when the stakes are relatively low, but it does not even make sense when the stakes are high.

Even in the criminal justice system, where the
punishment is severe, we say "better that ten guilty go free” or
"better that 100 guilty go free." We do not say "better that a
million go free" or "better that everyone go free." We do not,
in other words, simply refuse to prosecute or convict violent criminals at all
out of a fear that someone sometime might be wrongfully convicted. We recognize, in the case of most crimes, that
there is a limit to the number of guilty people that should go free. A government
that fails to successfully prosecute any violent criminals for fear of
potentially convicting an innocent person once in a great while will fail to
protect the public, perhaps the most important of its responsibilities.

But somehow, when it comes to rape--especially acquaintance
rape--this basic principle does not apply. Suddenly, the only cost for us to consider is the cost
of believing a false accusation. The cost
of believing a false accusation of any other crime would, of course, be the same, but people generally do
not worry that it "could happen to me" when considering another
crime. Trump speaks to that fear that a false rape accusation "could
happen to me" when he says that men, rather than women, are the ones in
danger. Trevor Noah of The Daily Show has a fascinating discussion of
this issue, the notion that men are the real victims.

Rape, however, can happen to people too, and it happens far
more often than false rape accusations do. Women and men are in denial about
this when they fear for their husbands and sons but not for their their wives and daughters. There is no more reason to expect a woman to
falsely accuse you (or your husband or your sons) of rape than there is to
expect a woman or a man to falsely accuse you of some other crime. Yet few people lie awake at night worrying about being falsely accused of
shoplifting or arson.

We need to hold rapists accountable for their behavior, and
rapists need to know that they will be held accountable. That is what made the
Kavanaugh/Ford moment so important. Had it gone differently, everyone who has
ever suffered at the hands of a rapist or attempted rapist would understand
that their suffering counts, that our society condemns it unequivocally when a
credible victim comes forward to complain, and that the authorities react with
retributive outrage. And perpetrators, not to mention teenagers, would learn under those circumstances that this is wrong,
unacceptable, and subject to punishment.

We have, unfortunately, lost that opportunity this time. But
sadly, there will be many more opportunities to get it
right. And when societal institutions begin to punish acquaintance rapists and
attempted rapists for their crimes, it will no longer be necessary for victims
to seek justice for what happened to them by shouting #MeToo.

10 comments:

The Verdict piece is entitled "Girls…Will Not…Replace Us" ... is that a reference to something in particular or a reference to a general mentality of certain men?

"To Kill A Mockinbird" is a tricky situation. There is some evidence that her own father sexually abused her and she lied basically to protect herself. There is also the 1930s Scottsboro Case, which is often referenced as an influence on the story where there was a false claim of rape. And, there are various false allegations that led to lynching. And, sometimes, the lies were in effect covering up a situation like here where she was friendly with a black man, something totally taboo. It is a special situation and not a typical rape allegation scenario.

I do think cultural messages are important. Thus, e.g., there have been a few references to 1980s comedies which advanced a rape culture. Molly Ringwald wrote a piece entitled "What About “The Breakfast Club”? Revisiting the movies of my youth in the age of #MeToo."

"Trump, as we know, effectively confessed to sexually assaulting women." No, he did not. He said that when you're rich and famous like him, women "let you" have sex with them, which is consent. What he was essentially talking about, albeit in crude fashion, was evolutionary psychology or biology, which the left doesn't want to understand because it doesn't fit the narrative.

Look at the Access Hollywood tape or transcript and, if you're honest, you'll agree he didn't confess to sexually assaulting women. It's just another of the thousands of lies the left tells, hoping that people will repeat them, without looking at the evidence.

Trump: Yeah, that’s her. With the gold. I better use some Tic Tacs just in case I start kissing her. You know, I’m automatically attracted to beautiful — I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything.

"They" here per full coverage of what went on has a general quality, people like Trump are allowed to assault women (per multiple women who came out) without real consequences. Yes, "they" let you do it. In the process, people like Trump conclude the women themselves are consenting.

So, "Grab ’em by the pussy. You can do anything." And, people will say "they consented." In fact, if you deny it, people will be scornful. Victims (including some men, particularly of the Catholic Church) known otherwise.

It would be nice to share the optimism that Ms. Colb displays in this Post, but unfortunately reality bites. A look, for example, at the post-Kavanaugh polling shows that Republicans have had a ‘Kavanaugh Surge’, at least in Senate races. The non-existent backlash has not occurred, and recent polling shows Dems losing in races they were previously leading, such as Tennessee and Arizona. If the polls are to be believed, if the election were held today the Dems would have a net loss of between two and four Senate seats with a worst case scenario of a loss of six seats or more.

One problem is that the world of Ithaca, New York is not the world most of the nation inhabits. In the world outside academic enclaves the attitude that women are subservient to men presides in not just men, but in a large portion of women. A look at any Trump rally shows women applauding his attack on women and his defense of a man credibly accused of sexual assault. Trump’s nauseating apology to Kavanaugh has produced no outrage.

It may be that the anger that needs to propel equality of the genders and condemnation of violence against women will surface in time for the mid-terms, but no one should be surprised if the nation wakes up after the election with Republicans still in control of at least the Senate. The ascension of the Republicans in general and with Trump in particular has shown that America is not what we think it is. In fact, it never was. A presentation of The Taming of the Shrew set in modern times would feel just right to its American audience.

How do we explain the treatment of Kavanaugh's other accusers by would-be allies? Those other accusers have been largely ignored by many who stand up for Ford. At best they've treated as politically inconvenient and at worst their credibility has been dismissed out-of-hand. I thought it exposed an interesting blindspot when Julie Swetnick called out those who say she should be silent (though I don't know what particular statements she is referencing). Why do those accusers continue to be ignored?

It is admittedly, and obviously, my observation. For some reason the other allegations have not gotten anywhere near the same traction.

I referenced Swetnick's letter which called out specific people who seemed eager to sideline her accusations. You suggest that "some can be found who think Dr. Ford has a stronger case." That might begin to answer my question, though you appear to not be terribly certain about the statement. If the answer is indeed that "Ford has a stronger case," I'd be curious to know why, and how that relates to Prof. Colb's argument here.

I just saw a video of Sen. Harris' questioning of FBI Director Wray on the limited investigation by the FBI in the Judge K confirmation post=Dr. Ford. Joseph's comments on Julia Swetnick's letter reminded me of this second draft verse of mine:

"Largely ignored" is fairly subjective from my standpoint. I have repeatedly seen people reference other accusers even if some can be found who think Dr. Ford has a stronger case.

Since I did not research the question, I am not going to say I'm "terribly certain" about it, but figure that can be said about comments here over and over again. People are stating their opinions. Few are "terribly certain" about things.

You cited her own letter concerned about various people who were not supportive of her position. You don't even know what statements she is referencing.

Other than that, why are you saying the other allegations are "largely ignored"? Her own letter (from your summary) doesn't even really say that. Not that one person who would naturally be upset about not being supported by some would be by its lonesome something to be "terribly certain" about.

It is not surprising to me, though Prof. Colb can comment if she cares to do so [professors here tend not to insert themselves here], that focus is put on Dr. Ford. There was a special hearing set up to address her allegations. Why wouldn't special emphasis not be given to her? She is the one the process itself focus on.

That by itself doesn't lead me to think other allegations are not respected. She briefly cited, e.g., the "Renate Almnius" comment. That wasn't the only thing in his yearbook with a sexist character. This doesn't mean she doesn't care about the others. Dr. Ford was the focus on the hearing and that was the focus of the column. We have a fuller official record of her remarks. If others, as they should have, would have been called as witnesses etc., we would have more of an ability to cover them too. Thus, e.g., during the Anita Hill hearing, other witnesses testified and were addressed in discussions of them.

I'll just repeat myself. I have seen multiple people, including members of Congress, refer to other allegations including the specific person referenced. They were not merely "dismissed out of hand" etc. In fact, the lack of a full accounting/investigation of them was and continues to be a major raw point. And, again, trying to look at everything, some did -- given the material available -- saw Dr. Ford as the strongest case.

But, even that was a split matter. To say it was "largely ignored" is a matter of subjective and selective viewing of the stuff out there from my vantage point, the only thing I can reference.

Joe, I get that you take issue with my description that the other accusers are largely ignored. We'll disagree on exactly how to describe treatment of their claims, but it's pretty clear to me that the other accusations have not been treated with the same seriousness. As for why Prof Colb doesn't reference them, there are any number of plausible reasons. Yet this post bears directly upon taking those less mentioned - maybe you will allow that characterization - allegations and taking the other women no less seriously. It would seem a perfect opportunity for taking up the cause of Swetnick and her expression of frustration.